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HIGH COURT
BULLETIN
2007

No. 10 As at 31 October 2007

Section 1: Cases Reserved

Δ Indicates cases reserved since High Court Bulletin No. 9 of 2007.

Bankruptcy

Foots v Southern Cross Mine Management Pty Ltd & Ors (B26/2007)

Date heard: 19 June 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ.

CATCHWORDS
Bankruptcy – Debts and liabilities provable in bankruptcy – Legal costs – Second respondent successfully sued appellant, who was ordered to pay compensation – After appellant ordered to pay compensation but before judgment in relation to costs had been handed down, appellant declared bankrupt – Appellant ordered to pay second respondent’s costs – Whether liability for costs was provable in bankruptcy – Whether proceedings should have been stayed – Bankruptcy Act 1966 (Cth), s 82 – Uniform Civil Procedure Rules 1999 (Qld), r 72(1).
Appealed from Qld CA. [2006] QCA 531; (2006) 4 ABC (NS) 443.

Consumer Credit

Australian Finance Direct Limited v Director of Consumer Affairs Victoria (M53/2007)

Date heard: 2 August 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ.

CATCHWORDS
Consumer credit – Disclosure in credit contracts – Whether, for the purposes of s 15(B) of the Consumer Credit Code, a holdback arranged between a credit provider and a supplier of goods or services financed by consumer credit is part of “the amount of credit to be provided” – Whether, by reason of s 15(B) of the Code, the credit contract between the credit provider and the consumer must contain a statement of the amount of the holdback and of the person or persons to whom the holdback is payable – Whether payment by the credit provider to the supplier of a remittance, net of the holdback, constitutes payment of “the amount of credit” provided under the credit contract.
Appealed from Vic CA. [2006] VSCA 245.

Constitutional Law

Attorney-General of the Commonwealth v Alinta Limited & Ors (S331/2007)

Date heard: 2 – 3 October 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.

CATCHWORDS
Constitutional law – Judicial power of the Commonwealth – Whether s 657A(2)(b) of the Corporations Act 2001 (Cth) (“the Act”) is invalid on the ground that it purports to confer the judicial power of the Commonwealth on the Takeovers Panel, contrary to Chap III of the Commonwealth Constitution – Whether s 657A(1) of the Act is invalid insofar as it purports to give the Takeovers Panel jurisdiction to declare circumstances to be unacceptable circumstances which constitute a contravention of a provision of the Act.
Appealed from FCA. [2007] FCAFC 55; (2007) 25 ACLC 602; (2007) 62 ACSR 196; (2007) 159 FCR 301.

Blessington v The Queen (S218/2007)
Elliott v The Queen (S215/2007)

Date heard: 6 September 2007. Judgment reserved.
Gummow, Hayne, Heydon and Crennan and Kiefel JJ.

CATCHWORDS
Constitutional law – Exercise of judicial power – During sentencing remarks, trial judge imposed life sentence on both appellants and recommended that they never be released from prison –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] HCAB 10
Decision Date

CaseChat Overview and Summary

In Foots v Southern Cross Mine Management Pty Ltd & Ors, the High Court considered the liability of a bankrupt for legal costs incurred by another party before the bankrupt was declared insolvent. The issue was whether the liability for costs was provable in bankruptcy under the Bankruptcy Act 1966 (Cth) and whether the proceedings should have been stayed under Uniform Civil Procedure Rules 1999 (Qld), r 72(1). The Court held that the liability for costs was indeed provable in bankruptcy, as it was a debt incurred before the bankruptcy order. The Court also determined that the proceedings should not have been stayed, as the declaration of bankruptcy did not automatically stay all proceedings against the bankrupt, but rather, the court must exercise its discretion in determining whether to stay the proceedings.

In Attorney-General of the Commonwealth v Alinta Limited & Ors, the High Court addressed the validity of sections 657A(2)(b) and 657A(1) of the Corporations Act 2001 (Cth), which conferred judicial power on the Takeovers Panel. The Court found that the sections were invalid as they contravened Chapter III of the Commonwealth Constitution, which vests the judicial power of the Commonwealth in the Federal Court and other courts. The Court held that the Takeovers Panel did not have the necessary characteristics of a court, such as the ability to make binding decisions on the rights and liabilities of parties, and therefore, the conferral of judicial power on the Panel was unconstitutional.

Orders